Katz, Avery Wiener; Sanchirico, Chris William --- "Fee Shifting" [2012] ELECD 98; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 10

Section Title: Fee Shifting

Author(s): Katz, Avery Wiener; Sanchirico, Chris William

Number of pages: 37

Extract:

10 Fee shifting
Avery Wiener Katz and Chris William
Sanchirico


1. Introduction
In most Western legal systems, a party who prevails in litigation is gener-
ally entitled to indemnification from the losing party for at least part of his
or her economic costs of prosecuting the lawsuit. The amount of litigation
expenditures that can be recovered, however, varies substantially both
among and within individual regimes. In the United States, the predomi-
nant rule awards a prevailing litigant what are officially termed `costs'
­ typically defined by statute to include filing fees, court reporter charges,
printing, copying, and witness fees, and the like ­ but does not entitle him
or her to recover expenditures on attorneys' fees, which are usually of far
greater magnitude in the case. Consequently, US litigants can bear signifi-
cant expense even when they are ultimately vindicated on the merits. In the
other common-law countries, in contrast, and indeed in most of the rest of
the Western world, winning litigants are entitled to recover attorneys' fees
as well as other out-of-pocket costs of litigation.
The substantial increase in expenditures on litigation and dispute reso-
lution in the United States over the last two decades has led both policy-
makers and scholars to advocate a variety of substantive and procedural
reforms in the legal system. The rules for allocating attorneys' fees in civil
litigation have drawn particular attention in this regard, with a number
of influential commentators recommending a move in the direction of
fuller indemnification ­ or ...